King V. Abeysekera

[FULL Bench. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Grenier.

THE KING v. ABEYSEKERA.

D. C. (Crim.), Kegalla, 1, 562.

Deed of gift-Stamp duty-Ordinance No. 3 of 1890, s. 23-Ordinance No. 1 of 1907. s. 29. A deed of gift of land must bear an ad valorem stamp.

APPEAL from a judgment of the District Judge of Kegalla. In this case the accused, a notary public, was charged under section 23 of Ordinance No. 3 of 1890 with having executed a deed of gift without having duly stamped it; and under section 29 of Ordinance No. 1 of 1907. with having permitted one Ekneligoda to

1 16 S. C. 368 (Nathan, vol. III., p. 1700).

execute the said deed, which was insufficiently stamped. The deed of gift in question bore a stamp of Rs. 10, and was not stamped according to the value of the land transferred by it. The learned  District Judge convicted the accused on both counts. He appealed.

Bawa (with him Batuwantudawa), for the appellant. -As this deed takes effect after the death of the person executing it, it amounts to a will, and requires no stamp. [C. J. -It takes effect immediately- on the execution of the deed. ] This is a Kandyan deed of gift, and the donor reserves a life interest. It may be revoked at any time during the donor's lifetime.

If the deed cannot be treated as a will, the stamp duty payable on it is (according to the Stamp Ordinance) the same as on a conveyance of property of the same value.

Conveyances may be divided into three classes for purposes of stamp duty: -

(a) Conveyances for pecuniary consideration.

(b) Conveyances for other than pecuniary consideration (i. e., partly pecuniary and partly other than pecuniary consideration), (c) Conveyances not provided for (covering cases which have no pecuniary consideration whatever).

Stamp duty on deeds of gift cannot fall under (a) or (b). It falls under (c).

Walter Pereira, K. C., S. -G., for the Crown. -It is clear that the intention of the law is that a deed of gift is to be stamped ad valorem as a conveyance. If the Legislature intended that a deed of gift should bear a stamp of Rs. 10 irrespective of value, nothing would have been easier than to have said so.

The term " consideration " in the schedule to the Stamp Ordinance must not be given a narrow interpretation; the term amounts to causa. See Tomlin's Law Dictionary. Consideration as used in the Stamp Ordinance is not restricted to valuable consideration. The meaning of consideration and causa has been explained in Lipton v. Buchanan. 1 See also Van der Linden 1, 14, 1.

Usage is in favour of stamping deeds of gift ad valorem.

Bawa, in reply. -Consideration is an English word, and we should follow the English meaning. We should not adopt the Roman-Dutch Law interpretation of causa in explaining the term " consideration. " Counsel cited Stroud's Judicial Dictionary, 2 Nathan's Common Law of South Africa, and judgment of the District Judge (Ferdinands) in D. C, Colombo, 19, 424, May, 1890.

Cur. adv. vult.

1 8 N. L. R. 49 and 10 N. L. R. 158.

November 25, 1909. Hutchinson C. J. -

The appellant was indicted and convicted on the charges that (1) he, being a notary public, on February 19, 1908, executed a deed No. 10, 946 dated February 14, 1908, without its being duly stamped, and thereby committed an offence under section 23 of Ordinance No. 3 of 1890; and (2) at the same time and place he permitted one Ekneligoda to execute the aforesaid deed, which was insufficiently stamped, and thereby committed an offence under section 29 (6) of Ordinance No. 1 of 1907.

At the trial there was no evidence that he was a notary, or that he ever executed any deed, and no deed was put in evidence, and, with the exception of his statement (presently mentioned), there was no evidence that he ever permitted any one to execute any deed. At the preliminary inquiry when he was charged with omitting to state the true val

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